Summary: Mr X complained about the actions of the Council relating to its Private Sector Lettings Scheme. He says it did not tell him he would be responsible for carrying out work identified by the Council if he decided he did not wish to participate in the scheme. Mr X also complains the Council did not properly consider his personal circumstances before issuing an Improvement Notice. Mr X says the Council’s actions caused him avoidable distress. We found no fault by the Council and have concluded our investigation.

The complaint

1. Mr X complains about the actions of the Council relating to its Private Sector Lettings Scheme. He says it did not tell him he would still be responsible for carrying out the work identified by the Council if or when he decided he no longer wanted to participate in the scheme.
2. Mr X also complains the Council did not properly consider his personal circumstances prior to the issue of an Improvement Notice. Mr X says the Council’s actions caused him avoidable distress by not acknowledging his situation.
3. Mr X also complains the Council pursued him to comply with the Improvement Notice after telling it his tenant had vacated and he intended to sell the property.

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What I have investigated

4. I have investigated the complaints referred to in paragraphs one and two. The final section of this statement gives my reasons for not investigating the complaint referred to in paragraph three.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. I have discussed the complaint with Mr X and considered the information he provided.
11. I have made enquiries to the Council and considered the information it provided.
12. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Legal and administrative background

13. Landlords must keep properties safe and free from health hazards for their tenants. The Government introduced the Housing Health and Safety Rating System (HHSRS) as operating guidance to allow assessment of all the main potential housing related hazards. These standards list 29 “hazards” that are risks to the health and safety of the occupiers.
14. The Council operates a Private Sector Lettings Scheme (PSLS). This is a free tenant finder service for landlords operated by the Council’s Private Sector Housing Options team. It aims to match private landlords’ properties to prospective tenants who have approached the Housing Options service.
15. If landlords wish to join the scheme, their properties must first be inspected by Environmental Health Officers from the Council’s Housing Standards team. The Environmental Health Officers consider the standard of properties with reference to the national HHSRS. If the officer finds a serious hazard, the Council has a duty to take enforcement action.
16. The First-Tier Tribunal (Property Chamber) considers appeals against Improvement Notices. The time limit for appealing a Notice is 21 days from the date of service. But the Tribunal can allow a late appeal where its view is it was not reasonably practical for the appeal to be made within the time limit.

The Council’s Private Sector Housing Enforcement policy

17. The Council’s policy says enforcement action in relation to Private Sector Housing is related to risk and is carried out through visits and inspections. It says all enforcement decisions are based on the risk to health, safety and welfare. (Private Sector Housing Enforcement Policy, 1.2)
18. The policy says “It is recognised that any policy is unlikely to take account of every individual situation. Each case therefore needs to be considered on its own merits.” (Private Sector Housing Enforcement Policy, 1.9)
19. The policy also says “the Council will normally take enforcement action where required, against landlords or agents who are putting the health, safety and welfare of their tenants at risk…”

What happened

20. Mr X decided to rent out a property that he owned and asked the Council’s PSLS team to help him find a tenant. In September 2018, an officer from the PSLS team inspected the property. Following the inspection by the PSLS team, Mr X agreed for the Council’s Housing Standards team (HST) to carry out a further inspection.
21. On 26 September 2018, an officer from the HST inspected Mr X’s property. The officer identified several issues which they considered to be hazards to prospective tenants.
22. The Council emailed a summary of the works it identified as being required to Mr X on 1 October 2018.
23. Later that same month, Mr X contacted the Council to say he had found a tenant to rent his property and he no longer required the service of the PSLS.
24. On 30 November 2018, the Council served Mr X with a notice of intended entry informing Mr X that it intended to visit his property on 4 December 2018 to carry out a re-inspection.
25. On 4 December 2018, the Council re-inspected Mr X’s property and identified that some of the works remained outstanding.
26. The Council called Mr X on the same day to tell him which works remained outstanding. He disagreed the outstanding works were required because he had not gone ahead with using the services of the PSLS. The Council told Mr X that despite this, he would still need to complete the outstanding works.
27. On 14 December 2018, the Council visited Mr X’s property again. It says it confirmed to Mr X in a telephone conversation that the works were required and must be completed.

What happened next

28. In October 2019, the Council says it reviewed its records of occupied properties with outstanding works. It says it contacted Mr X to tell him it intended to visit his property on 1 November 2019.
29. The Council inspected Mr X’s property on 1 November 2019. It identified that some of the works had been completed, but there were some outstanding hazards and some hazards which were not previously identified.
30. The Council called Mr X on 11 November 2019 to discuss the results of its inspection. Mr X told the Council he was no longer living locally due to personal circumstances and explained these personal circumstances to the Council.
31. The Council told Mr X it intended to issue an Improvement Notice because he had not rectified all the hazards identified in its inspections, despite its advice to him. The Council said the Improvement Notice would provide time in which Mr X could complete the works.
32. On 15 November 2019, the Council issued an Improvement Notice to Mr X. The Notice listed the hazards identified and the work required to rectify the issues. The Notice explained Mr X had the right to appeal to the First-tier Tribunal.
33. Mr X complained to the Council about the Improvement Notice. He said he had understood the Council would allow him more time to rectify some of the issues at the property and said the Council should have considered his personal circumstances before deciding to issue the Notice.

Events after the Improvement Notice was issued

34. On 19 November 2019, Mr X’s tenant moved out of the property.
35. The Council responded to Mr X’s complaint on 21 November 2019. It said the Council had notified Mr X of the works required to bring his property to the required standard for renting. It said properties with outstanding works not participating in the PSLS are listed for re-inspection when the property is re-occupied to check the works have been completed.
36. The Council said it identified the works had not been completed and given the length of time given to address the repairs, the HST had no option but to take formal enforcement action in line with its enforcement policy. The Council said it had discussed Mr X’s personal circumstances with him and sympathised with his situation. However, it said it could not allow tenants to continue living in properties with hazards that have a detrimental effect on their health.
37. In December 2019, the Council sent Mr X an invoice for the costs of the enforcement action it had taken. It also sent a demand for payment to Mr X in January 2020.
38. Mr X complained again to the Council. He said he thought his involvement with the HST ended when he decided not to place his property with the PSLS. He said the Council had not properly considered his personal circumstances and had issued the Improvement Notice despite its assurances that it would provide time to complete the works. Mr X also complained the Council had continued with its enforcement of the Improvement Notice even though the property was vacant from mid-November 2019.
39. The Council responded on 10 March 2020. It said the PSLS tells all prospective landlords the required standards are for all rental properties, regardless of whether the landlord participates in the scheme or rents privately. It said the Council had sympathy for Mr X’s extenuating circumstances but the role of the HST was to ensure tenants are not placed in properties detrimental to their health. It also said it would hold the Notice in abeyance while the property was empty, but the charge for the service of the Notice was payable.
40. Mr X escalated his complaint to stage 2 on 30 April 2020. He maintained the Council did not properly consider his personal circumstances before issuing the Improvement Notice. He also complained the Council should not continue to compel him to complete the works because the property was now vacant and advertised for sale.
41. The Council responded on 14 May 2020. It said it issued the Improvement Notice in accordance with its enforcement policy and Mr X had the right of appeal against the issue of the Notice. It said the property being on the market was not a valid reason to revoke the Notice as this did not prevent Mr X from letting it to another tenant.
42. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.
43. Mr X says he sold his property in December 2020.

Analysis

44. I have decided to exercise discretion in investigating matters back to 2018. This is because the Council’s final response relating to the issues complained about is dated 14 May 2020. Mr X brought his complaint to us within 12 months of this date.

Inspection of the property

45. The Council says when officers from the PSLS first speak to landlords, they explain how the scheme works, carry out an initial inspection and explain there is a requirement for the property to be inspected by the HST. It says it explains to the landlord at the outset that the inspection is to ensure the property is suitable for renting. It also says the inspection by the HST can potentially identify hazards that the landlord will need to address to achieve the required standard. The Council says it explains to the landlord that the standard required by the HST applies regardless of whether the property is placed with the PSLS or whether the landlord finds their own tenant.
46. I have seen evidence a PSLS officer carried out an inspection of Mr X’s property on 24 September 2018. The record from the visit states the property did not pass the initial inspection and states “multiple works need doing”. The form indicates Mr X was asked if he wished to proceed with the HST inspection and records his answer as “Yes”. I consider the record of the PSLS inspection is evidence that some issues were identified, and that Mr X agreed to proceed with a further inspection.
47. I have not seen evidence of the Council’s explanation to Mr X regarding his requirement to carry out repairs at the time of either inspection. However, I acknowledge it is possible the Council may have provided such an explanation verbally. Although I have seen no evidence of the specific advice provided to Mr X, I have seen the Council’s published information about the PSLS which states “We offer free advice on any improvements required in order to meet the housing standards for letting”.
48. The Council says it explains to landlords that the standards required by the HST apply to properties regardless of whether the landlord places them with the PSLS or rents privately. However, Mr X says the Council did not explain this to him. He says if the Council had told him the reason it wanted to inspect his property, he would have told it he could not go along with its rules.
49. There is therefore a clear difference in the account given by both parties. While I have no reason not to believe Mr X’s account, the same applies to the Council’s account. Without independent evidence to support either parties account, I must consider the other evidence available to determine if the Council was at fault.
50. As previously stated, all landlords are required to ensure their properties are safe for their tenants and are free from hazards. Therefore, even if Mr X had not contacted the Council and enquired about the PSLS, he was required to ensure his property met the required standards for letting.
51. The Council’s published information regarding the PSLS refers to this, as it states it offers advice to landlords about any improvements needed to meet the required standards. As a result, and given the initial PSLS inspection identified that “multiple works need doing”, I consider there is evidence to show the Council provided information which explained that as a landlord, Mr X was responsible for carrying out the work identified.
52. I acknowledge Mr X says the Council did not specifically tell him he would need to carry out the work even if he decided not to proceed with the PSLS. But as the landlord, and regardless of how the property was let, Mr X was responsible for ensuring the property met the required national standards. He was also responsible for this prior to him approaching the PSLS. On this basis, I have found no fault by the Council.

The Council’s consideration of Mr X’s personal circumstances

53. Mr X says the Council did not properly consider his personal circumstances before issuing the Improvement Notice. He says the circumstances at the time meant it was very difficult for him to carry out the repairs to his property. I acknowledge Mr X says his personal circumstances were extremely stressful and a cause of great concern for himself and his family. He says he explained his circumstances to the Council, but it failed to acknowledge his specific situation prior to issuing the Improvement Notice.
54. I have reviewed the evidence provided, including records of the contact between Mr X and the Council to determine how the Council considered the circumstances of Mr X’s case.
55. I have reviewed the Council’s records of the inspections on 24 September and 26 September 2018, and the Council’s notification to Mr X on 1 October 2018. I have also seen a record of a telephone call between Mr X and the Council on 4 December 2018. This call was made on the same date as the Council’s re-inspection. The notes state Mr X disagreed that he needed to complete the works as he had not used the PSLS to find his tenant. Mr X also disputed some of the issues identified by the Council. The Council says it called Mr X again on 14 December 2018 to say the works remained outstanding and required completing.
56. There is a break in the evidence from December 2018 until October 2019, when the Council contacted Mr X again to tell him it intended to carry out another inspection. I have seen evidence of the Council’s inspection conducted on 1 November 2019. The record of the inspection shows works outstanding at Mr X’s property.
57. I have also seen a record of a telephone call between the Council and Mr X on 11 November 2019, four days before the Council issued the Improvement Notice. The Council’s notes state Mr X explained his personal circumstances. They also state the Council told Mr X it would issue an Improvement Notice because he had not completed the works it had identified.
58. The Council’s complaint responses of 21 November 2019 and 10 March 2020 state it has sympathy for Mr X’s circumstances. However, it says it must also consider its role to ensure tenants are not placed in properties detrimental to their health.
59. The evidence of the above contact confirms Mr X explained his personal circumstances to the Council. It also demonstrates the Council considered the circumstances relating to Mr X’s case, including his explanation of his personal circumstances. This is because the Council’s records show it discussed with Mr X his disagreement about the repairs, and the personal circumstances which Mr X says made it difficult for him to complete the works.
60. I acknowledge Mr X says the Council should have considered his specific circumstances, particularly relating to the reasons why it was difficult for him to carry out repairs. I agree with Mr X regarding this issue and consider this to be a requirement of the Council’s enforcement policy.
61. However, while Mr X’s circumstances were an important aspect of the Council’s consideration, the Council should not limit its consideration solely to those circumstances. It must also consider other factors when deciding on what enforcement action is appropriate.
62. This includes the health, safety and welfare of tenants, any previously unsuccessful enforcement action, any outstanding works and the time elapsed since the hazards were identified. The evidence shows the Council took account of all these circumstances, as well as Mr X’s personal circumstances. On this basis, I am satisfied the Council followed its enforcement policy by considering the case on its own merits. As a result, I have found no fault by the Council in this aspect of the complaint.
63. I acknowledge Mr X may not agree with the Council’s decision to issue the Improvement Notice. However, Mr X had the right to appeal this decision to the First-Tier Tribunal (Property Chamber).

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Final decision

64. I have found no fault by the Council and I have concluded my investigation.

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Parts of the complaint that I did not investigate

65. I have not investigated Mr X’s complaint referred to in paragraph three. This is because as stated at paragraph seven, we cannot normally investigate a complaint when someone can appeal to a tribunal.
66. It was reasonable to expect Mr X to appeal to the First-Tier Tribunal (Property Chamber) when the Council issued the Improvement Notice.

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Investigator's decision on behalf of the Ombudsman